Interference with Non-National Ships on the High Seas: Peacetime Exceptions to the Exclusivity Rule of Flag-State Jurisdiction
Pursuant to the exclusivity rule of flag-state jurisdiction, a ship on the high seas is subject to the exclusive jurisdiction of the state whose flag she lawfully flies. Conversely, a state may not ordinarily interfere with those ships registered under the laws of another state. International law makes exception to this general rule in certain discrete circumstances. When such an exception exists, a state may lawfully stop, visit, search, and arrest a non-national ship on the high seas--a right normally reserved to the flag-state alone. These exceptions to the exclusivity rule of flag-state jurisdiction form the subject matter of this Note.
The author begins with a brief history of the origin of the exclusivity rule of flag-state jurisdiction and the development of the rule in international jurisprudence. The Note then provides a discussion of the two modes of permissible interference--the customary right of reconnaissance and the droit de visite. The simple right of reconnaissance affords a public ship the right to approach a private vessel on the high seas to inquire her identity. The more elaborate droit de visite is composed of two distinct operations: the droit d'enquete du pavillion and the right of visitation and search. Pursuant to her droit d'enquete du pavillion, a public ship may board a private vessel to ascertain the private vessel's right to her flag. If warranted, the boarding party may proceed to search the vessel to determine whether she is engaged in some proscribed activity. The author finds that in time of peace a state may not interfere with the ships of another state unless there exists an exception to the exclusivity rule of flag-state jurisdiction. Exceptions to the exclusivity rule permit a state to proceed against a vessel suspected of being (1) a pirate; (2) a trader in slaves; (3) a stateless ship; (4) a threat to the security or integrity of the state; or (5) in actuality a ship belonging to the interfering state, although flying the flag of another state. These exceptions exist as a matter of customary international law and are therefore available to all states. States may also enter into treaty regimes that permit a mutual right of interference, but such an exceptional right is enforceable against treaty parties only. Such a right may exist in the case of suspected pirate radio broadcasters. The author addresses each customary exception to the exclusivity rule as well as the pirate radio broadcaster exception, all of which are codified in the 1982 United Nations Convention on the Law of the Sea.
Robert C.F. Reuland,
Interference with Non-National Ships on the High Seas: Peacetime Exceptions to the Exclusivity Rule of Flag-State Jurisdiction,
22 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vjtl/vol22/iss5/4